SMU Law Review
Volume 43
Issue 1
Annual Survey of Texas Law
Article 4
1989
Workers' Compensation
David Noteware
Bates Bates
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Recommended Citation
by
David Noteware* and Tim Bates**
HILE the legislature did not make any extensive changes in the
Workers' Compensation Act during the Survey period, the legisla-tive committee on workers' compensation reform is currently holding hearings that may drastically change the Texas workers' compensa-tion system.' Public demands for reform continue because the cost of the compensation system remains one of the highest in the nation, while it pro-vides proportionally low benefits to employees injured on the job.2 The cur-rent debates and proposed changes in the system affect such areas as the proposed elimination of the trial de novo, further reduction of attorneys' fees, and other significant changes.3
SUBSTANTIVE LAW
A. Duty of Good Faith and Fair Dealing
The courts continue to expand the duties and responsibilities of workers' compensation insurers while interpreting substantive law under the Work-ers' Compensation Act. By far, the most significant case of this Survey pe-riod affecting workers' compensation insurers and employees is Aranda v.
Insurance Co. of North America.4 In Aranda the Texas Supreme Court
an-* B.S., University of Pennsylvania; J.D., University of Texas Law School. Senior
Part-ner with Thompson & Knight, Dallas, Texas.
** B.B.A., Southern Methodist University; J.D., Southern Methodist University School
of Law. Attorney at Law with Law Offices of Timothy E. Kelley, a P.C., Dallas, Texas. 1. See, Dallas Morning News, Nov. 11, 1988, at 1, § D. Senator Bob Glasgow, Co-Chairman of the Joint Select Committee on Workers' Compensation Reform, told the Texas Association of Business that the legislature is drawing up recommendations in workers' com-pensation insurance that could drastically change this system. These changes may include eliminating lump sum settlements, restricting attorneys' fees, and deleting the trial de novo of Industrial Accident Board awards. Speaker of the House Gib Lewis stated that it is a high priority of the House of Representatives to reform the Workers' Compensation Act.
2. See Dallas Morning News, Oct 7, 1988, at 1, § D. A consultant hired to study the Texas workers' compensation system that stated that it is flawed with one of the highest medi-cal costs of any state system, it provides unequal benefits for injured workers, and has an administrative body that lacks the authority and resources to effectively do its job.
3. Id. Representative Richard Smith stated that the workers' compensation bill will be House Bill Number I when the state legislature convenes in January. A consultant hired to study the Texas workers' compensation system stated that the trial de novo represents one of the most controversial issues in Texas workers' compensation law.
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nounced the rule that a workers' compensation insurer has a duty to deal fairly and in good faith with injured employees when it processes their com-pensation claims.5
In Aranda, two companies employed the claimant and each company used a different workers' compensation insurer.6 When the Aranda claimant suf-fered a repetitious traumatic injury, both insurers agreed that the claimant's injuries occurred during the course of his employment.7 Yet, the insurers refused to pay the claimant benefits until the Industrial Accident Board (IAB) resolved which insurer should pay the claim.8 Mr. Aranda brought suit against both insurers alleging: (1) a breach of the insurers' duty of good faith and fair dealing in processing his claim, and (2) intentional misconduct in handling his claim.9 The trial court and court of appeals agreed with the insurers that Mr. Aranda's good faith allegations failed to state a cause of action.10 Further, the court of appeals held that the exclusivity provision of the Workers' Compensation Act barred Mr. Aranda's intentional
miscon-duct allegations. I
The Texas Supreme Court, however, reversed the lower courts' decisions and held that the contractual relationship between the insurer and the em-ployee created a special relationship equal to that established by other types
5. 748 S.W.2d at 212-15.
6. Id. at 211. 7. Id.
8. Id.; see TEX. REV. CIV. STAT. ANN. art. 8307, § 5c (Vernon Supp. 1989) (establishes payment of proportionate share prior to liability determination in cases concerning multiple subscribers). The legislature amended the Workers' Compensation Act to handle disputes be-tween carriers similarly situated to the carriers in Aranda. Article 8307, § 5c states:
In any proceeding in which it is determined that compensation, including costs for medical services incurred, is allowable in a sum certain for injuries sustained by an employee, but there is a dispute with respect to which of two or more subscribers said employee was serving at the time of the injury, the Association and other workers' compensation insurer, or insurers, of each such subscriber shall be required to pay a proportionate share of the compensation benefits, in-cluding costs for medical services incurred, for the injuries received. Such pro-portionate share due from the Association and other workers' compensation insurer, or insurers, shall be determined by dividing the compensation benefits, including costs for medical services incurred, by the number of subscribers who are alleged to have been the employer of the injured employee at the time of injury, and the Association and workers' compensation insurer of each such sub-scriber shall pay such proportionate share, or shares, depending on whether they insure one or more of such subscribers. The Board or court shall deliver the full amount of the workers' compensation award, including costs for medical serv-ices incurred, in the same manner as if the sum had been paid only by the re-sponsible insurer. Thereafter, upon final determination of liability for compensation, whether by agreement, award of the Board or order of the court, the insurer, or insurers found not to be liable shall be entitled to reimbursement for its, or their proportionate share paid from the insurer who is determined to be liable for compensation and medical costs incurred. No award or judgment pursuant to this section shall affect any rights of the claimant, directly or collat-erally, in any other claim or suit, nor shall evidence of such award or judgment be admissible in any other suit brought by the claimant.
Id.
9. Aranda, 748 S.W.2d at 211-12. 10. Id. at 211.
11. Id.
of insurance contracts.1 2 Because this special relationship implicitly creates the duty of good faith and fair dealing, the Texas Supreme Court held that the insurance carriers must meet heightened standards in the processing and payment of workers' compensation claims.1 3 Additionally, the supreme court noted that the existence of the IAB does not negate the special trust relationship between the carrier and the employee.1 4 Finally, the supreme court held that the exclusivity provision of the Workers' Compensation Act does not bar claims for a breach of the duty of good faith and fair dealing because good faith damages differ from the damages recoverable under a claim for workers' compensation benefits.1 5
In setting out a cause of action for the breach of the duty of good faith and fair dealing against an insurer, the supreme court held that a plaintiff must prove the following elements:
(1) The carrier does not have a reasonable basis for denying benefits; (2) The carrier knew or should have known that no reasonable basis
exists for denying the claim or delaying payment of the claim; (3) The carrier's lack of good faith, separate and independent from the
original job-related injury, proximately caused damages to the claimant; and
(4) The employee sustained ordinary damages as a result of the car-rier's action.1 6
If a jury finds that a carrier breached the duty of good faith and fair dealing, the claimant may recover ordinary tort damages, and also punitive
damages. 17
Since the Aranda decision two courts have commented on what consti-tutes a reasonable basis to deny a claim. In Fuentes v. Texas Employers
In-surance Association 18 the insurance carrier had denied benefits to the
employee based upon a medical opinion obtained by the carrier.19 The trial court entered summary judgment on behalf of the carrier, holding that the
. 12. Id. at 212. The supreme court also noted the well established rule under Texas law
that "accompanying every contract is a common law duty to perform with care, skill,
reason-able expedience and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort as well as a breach of contract." Id. (quoting Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 157, 204 S.W.2d 508, 510 (1947) (emphasis ad-ded). This same duty of care, and faithfulness that arises under common law contracts applies to insurance contracts.
13. Aranda, 748 S.W.2d at 212; see Arnold v.National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987) (holding that the insurer owes the insured a duty of good faith and fair dealing because of the special trust relationship between parties).
14. Aranda, 748 S.W.2d at 212. The supreme court noted that the Industrial Accident Board may ultimately rectify an unreasonable carrier's actions, but the injured employee would incur interim damages because of his inability to meet basic living expenses or pay for medical care. Id.
15. Id. at 214. The court noted that the Workers' Compensation Act only bars damages for personal injuries and thus does not bar damages for tortious bad faith or breach of con-tract. Id.
16. Id. at 215. In setting out the elements of this cause of action, implicitly included in the court's discussion are the elements of proximate causation and damages. Id. at 214.
17. Id. at 215.
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carrier, which had based the denial of the claim on a medical opinion, had unequivocally established a reasonable basis for rejecting the claim.20 Rely-ing on Aranda and recognizRely-ing that carriers have the right to deny question-able claims, the court of appeals upheld the summary judgment and established that the simple denial of a claim, although later proven to be in
error, does not subject carriers to liability.21 Tort liability does not attach to
the carrier if a reasonable insurer under similar circumstances would have denied the claim.22 Consequently, if the carrier erred in denying the claim, it will not be liable for bad faith damages if its conduct meets the above-mentioned, objective standard.23
In Izaguirre v. Texas Employers' Insurance Association 24 three claimants filed suit against a carrier alleging that the carrier breached its duty of good faith and fair dealing.25 Previously the carrier had settled the claimants' underlying claims for compensation benefits and the claimants had provided releases for their compensation claims.26 Two of the releases stated that the claimants recognized the uncertainty and the incapability of establishing the
carrier's liability.27 A third claimant, however, signed a release that did not
contain this statement.28
Holding that the settlement of the underlying compensation claims re-lieved the carrier from any further liability to the injured employees, the trial court granted summary judgment for the carrier.29 The court of appeals upheld the decision as to the first two claimants. The appellate court rea-soned that in order to recover for the breach of the duty of good faith and fair dealing, the claimants must prove either (1) that the carrier had no rea-sonable basis to deny their claim or delay payment of benefits, or (2) that the insurer failed to establish that a reasonable basis existed for the denial or the delay.30 Because the settlement documents specifically recognized the un-certainty of the claims, the court of appeals held as a matter of law that the carrier could not be liable for any alleged breach of the good faith and fair dealing duty.3' Regarding the claimant that did not sign a release
contain-20. Id. at 32.
21. Id. at 33-34. The court held as a matter of law that the denial of the claim based upon a medical opinion is a reasonable basis for denying payment of compensation claims.
22. Id. at 33.
23. Id. at 33-34; see also Aranda v. Insurance Co. of N. Am., 748 S.W.2d at 212
(estab-lishing that carriers may deny invalid or questionable claims without subjecting themselves to liability for an erroneous denial of a claim).
24. 749 S.W.2d 550 (Tex. App.-Corpus Christi 1988, writ denied). 25. Id. at 552.
26. Id. at 555.
27. Id. The statement signed by the claimants stated: "I understand and agree that the liability of said Insurance Carrier is indefinite, uncertain and incapable of being satisfactorily established .. " Id.
28. Id. The insurer did not explain why it did not insert the standard uncertainty clause into this claimant's release.
29. Id. at 552.
30. Id. at 555; see also Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 212 (Tex. 1988) (discusses the elements of the duty of good faith and fair dealing). For a discussion of the Aranda decision, see supra notes 4-17 and accompanying text.
31. Isaguirre, 749 S.W.2d at 555.
ing the provision relating to the uncertainty of his claim, the court of appeals specifically held that this claimant alleged a valid cause of action for the breach of the good faith and fair dealing duty.32
Holding that an action for breach of the duty of good faith and fair deal-ing sounds in tort, the court rejected the insurance carrier's statute of limita-tions defense.33 The court found that a two-year statute of limitations governs the cause of action.34 This claim, however, arises not from the in-jury on the employment, but rather from separate acts during the processing of the claim.3 5 An alleged series of incidents over a period of time consti-tutes a continuous injury, and thus the statute of limitations does not begin to run until the conduct ends or the parties resolve the underlying claim.36
B. Course and Scope of Employment
Under the Workers' Compensation Act, an employee may recover com-pensation if he sustains an injury in the course of employment.37 The Act defines "injuries sustained in the course of employment" to
include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the em-ployer received by an employee while engaged in or about the further-ance of the affairs or business of his employer, whether upon the employer's premises or elsewhere.38
In Lujan v. Houston General Insurance Co.39 the Texas Supreme Court interpreted the application of the requirement that the injury occur in the course of employment to include a delayed action injury.40 A delayed action injury is an injury precipitated by job-related events that does not actually occur until after the employee leaves his job premises.4 1
In Lujan the claimant, a painter, used a pressurized spray unit to apply paint mixed with a thinner.42 When Mr. Lujan attempted to fix a leak in the equipment, a line blew and covered him with paint.43 Thereafter, Mr. Lujan used gasoline to remove the paint.44 Because his employer did not provide facilities for rinsing off the residue, Mr. Lujan went home in order to use his own facilities.45 When Mr. Lujan entered his bathroom, the pilot light from the heater ignited the gasoline fumes from his body and Mr. Lujan died in a
32. Id.
33. Id. at 555-56; see Aranda, 748 S.W.2d at 213; Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987).
34. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon 1986). 35. Isaguirre, 749 S.W.2d at 556.
36. Id.
37. TEX. REV. CIV. STAT. ANN. art. 8306, § 3b (Vernon 1967). 38. Id. art. 8309, § 1(4) (emphasis added).
39. 756 S.W.2d 295 (Tex. 1988). 40. Id. at 297.
41. Id. (citing 1A A. LARSON, LAW OF WORKERS' COMPENSATION § 29.22 (1985)). 42. Id. at 295.
43. Id.
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flash fire.46 While the jury found that Mr. Lujan's injuries occurred in the
course of his employment, the court of appeals rendered judgment in favor of the carrier.4 7
The supreme court reversed the court of appeals and reinstated the trial court's judgment.4 8 The supreme court held that Mr. Lujan's injuries originated in his employment as a matter of law because job-related events triggered his death.49 These events included getting paint on his body while at work and attempting to clean the paint with gasoline because the em-ployer failed to provide bathing facilities.50 The supreme court rejected the carrier's argument that the Workers' Compensation Act covers only injuries that arise directly from an accident that occurs while the employee is work-ing. The supreme court's decision reaffirmed that the Workers' Compensa-tion Act should be liberally construed in favor of the worker.5'
Although an employee may sustain injuries at his job site, the injuries may not necessarily occur in the course of employment. For example, the Work-ers' Compensation Act specifically excludes from the definition of an injury sustained in the course of employment an injury resulting from a third per-son's actions that do not relate to the injured employee's employment.5 2 Some courts and commentators refer to this exception as the "personal ani-mosity" exception.5 3 Two recent cases show the effect of this exception.
In Security Insurance Co. v. Nasser5 4 a jealous boyfriend of a customer assaulted and killed an employee after the boyfriend saw the employee con-versing with his girlfriend.55 The injured employee filed a workers' compen-sation claim, but the carrier refused to pay the claim. The carrier asserted the personal animosity exception as a defense, alleging that the employee's death resulted from a personal attack and that the assailant did not direct the attack against the employee because of his employment.56
At trial, Mr. Nasser's estate introduced evidence showing that Mr. Nas-ser's duties as an employee included spending time with customers and, in
46. Id.
47. Id. The judge asked the jury whether Mr. Lujan's work or the conditions of his em-ployment resulted in an injury to him which was a producing cause of his death. The jury answered this question favorably to Mr. Lujan. Id.
48. Id. at 298.
49. Id. at 297. The court noted that by enacting the Workers' Compensation Act the legislature intended to compensate employees whose injuries "hav[e] to do with and originat[e] in the work, business, trade or profession of the employer ... Id. (quoting TEX. REV. CIv.
STAT. ANN. art. 8309, § 1(4) (Vernon 1967)). 50. Id. at 296-97.
51. Id. at 297; see Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 246, 256 S.W.2d 73, 75 (1953); Yeldell v. Holiday Hills Retirement & Nursing Center, Inc., 701 S.W.2d 243, 245 (Tex. 1985).
52. "An injury caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment." TEX. REV. CIV. STAT. ANN. art. 8309, § 1(2) (Vernon 1967).
53. See A. LARSON, LAW OF WORKERS' COMPENSATION § 11.21 (1985).
54. 755 S.W.2d 186 (Tex. App.-Houston [14th Dist.] 1988, no writ), on remand from 724 S.W.2d 17 (Tex. 1987).
55. 755 S.W.2d at 189. 56. Id.
his capacity as an employee he became acquainted with the girl.57 Had it not been for her visits to the restaurant as a customer and Mr. Nasser's duty to be friendly with her, the assailant would never have seen the two talk-ing.58 After a jury verdict in favor of the claimant's estate, the court of appeals reversed the jury verdict and held that no evidence existed to show that the assailant intended to injure Mr. Nasser because of his employment.59
The supreme court reversed the court of appeals and remanded the case to the lower court to consider other points of error because the personal ani-mosity exception did not apply.6° The court gave two reasons in explaining its holding.6 1 First, the court found that some evidence supported the jury's finding that the claimant suffered injuries in the course of his employment.62 The supreme court focused on the claimant's responsibility to act in a friendly manner towards customers, and the fact that this courtesy resulted in the assailant attacking the claimant.63 In explaining the personal animos-ity exception, the court stated that the exception only applies to disputes that have been transported into the place of employment from the injured em-ployee's private or domestic life and that do not exist as a result of the claim-ant's employment.64
Additionally, the supreme court found that the jury's verdict incorporated a finding that the assailant's mental status prevented him from intending to assault the employee.65 When an insane or irrational assailant injures an employee, the personal animosity exception does not apply because the as-sailant does not intend to injure the employee solely as the result of personal
57. Id. at 190-91. 58. Id. at 191.
59. Id. at 188-89. The jury issue consisted of the following:
Do you find from a preponderance of the evidence, that Izzat Nasser was in-jured in the course of his employment on or about February 20, 1981? "'INJURY IN THE COURSE OF EMPLOYMENT' means any injury having to do with and originating [from] the work, business, trade, or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer's premises or elsewhere. An injury is not in the course of employment if it is caused by the act of another person intended to injure the employee because of reasons personal to the employee and not directed against him as an employee or because of his employment. A person cannot intend to injure an employee if the person is incapable of entertaining a rational intent or is incapable of rational reasoning." ANSWER ("We do," or "We do not.")
ANSWER We do.
Id. at 189-90.
60. Nasser v. Security Ins. Co., 724 S.W.2d 17, 19 (Tex. 1987). 61. Id. at 18-19.
62. Id.
63. Id. at 19. The supreme court emphasized that if not for the girlfriend's visits to the restaurant as a customer, the assailant would never have seen the employee talking to his girlfriend. Id.
64. Id. The court noted that "whenever conditions attached to the place of employment or otherwise incident to the employment are factors in the catastrophic combination, the con-sequent injury arises out of the employment." Id.
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motivations.66 Thus, when asserting the personal animosity defense, the car-rier must prove the following three elements: (1) the assailant's intent to injure the employee; (2) the assault occurred because of personal reasons; and (3) the assault did not occur because of reasons associated with the claimant's employment or employee status.67 On remand, the court of ap-peals affirmed the jury verdict.68
The Dallas court of appeals recently reviewed the personal animosity ex-ception in light of the Nasser opinion. In Porter v. Dallas Independent
School District 69 the court of appeals held that the mere fact that an assail-ant kills an employee on the premises of his employer does not mean that the killing occurred in the course of his employment.70 In Porter a school janitor, while on duty at the school, noticed a child near his automobile which was parked at his nearby residence.7' Thinking that the child was vandalizing his car, the janitor left the school premises, confronted the child in front of his residence, and spanked the child.72 Thereafter, the child left and the janitor returned to the school.73 Later, the child's grandmother ap-proached the janitor on school premises and shot and killed him.74
The Dallas court of appeals reversed a jury verdict in favor of the claim-ant's estate and held that the claimclaim-ant's death did not occur during the course of his employment because the grandmother killed him for personal reasons.75 The appellate court explained that the' assailant did not kill the janitor because he worked for the school district or because of his janitorial duties. Additionally, the janitor was not acting in furtherance of his em-ployer's business when he left the school property to discipline the child.7 6 Consequently, the injury resulted from a dispute that arose in the janitor's private life but had severe repercussions in his place of employment.7 7 The court of appeals, therefore, applied the personal animosity exception.78
C Prejudgment Interest
In Jones v. Liberty Mutual Insurance Co.79 the Texas Supreme Court held
66. 755 S.W.2d at 192-93.
67. See Nasser, 724 S.W.2d at 18 n.1; TEX. REV. Civ. STAT. ANN. art. 8309, § 1(2) (Vernon 1967).
68. 755 S.W.2d at 187.
69. 759 S.W.2d 454 (Tex. App.-Dallas 1988, petition for writ of error filed). 70. Id. at 455-56.
71. Id. at 455. 72. Id.
73. Id.
74. Id. at 456.
75. Id. 76. Id.
77. Id. at 455-57.
78. See id. at 456; see also TEX. REV. CIV. STAT. ANN. art. 8309, § 1(2) (Vernon 1967),
which excludes from the definition of an injury sustained in the course of employment:
(2) An injury caused by an act of a third person intended to injure the
em-ployee because of reasons personal to him and not directed against him as an
employee, or because of his employment.
TEX. REV. CIV. STAT. ANN. art. 8309, § 1(2) (Vernon 1967). 79. 745 S.W.2d 901 (Tex. 1988).
that a workers' compensation insurer may not recover prejudgment interest in a third-party subrogation case.8 0 The injured worker in Jones filed a third-party suit against other parties for injuries received in the automobile accident that caused his occupational injury.8' The compensation insurer intervened for its subrogation interest.8 2 After the award of damages to the plaintiff, the trial court allowed the insurer to recover the proportionate amount of prejudgment interest attributable to the amounts it had previ-ously paid the claimant.8 3 The court of appeals affirmed the trial court's judgment.84
The supreme court reversed the lower courts' holdings and held that a compensation insurer may not recover prejudgment interest on the sums that it paid to or on behalf of the workers' compensation claimant when it intervenes in the injured employee's third party action.85 The court rea-soned that the Workers' Compensation Act explicitly provides that the in-surer may only recover: (1) past compensation benefits paid; (2) medical expenses paid; and (3) attorneys' fees.8 6 The court also explained that the Workers' Compensation Act governs the compensation insurer's right to subrogation.8 7 Thus, the supreme court ruled that the injured employee alone recovers all prejudgment interest.88 This holding allowed the plaintiffs to enjoy the use of compensation benefits and to recover the interest on those benefits from the third-party tortfeasors.
After Cavnar v. Quality Control Parking Inc.89 the question of whether an
80. Id. at 903.
81. Id. at 901.
82. Id.; TEX. REV. CIV. STAT. ANN. art. 8307, § 6a (Vernon Supp. 1989) governs a
com-pensation carrier's right to subrogation. Article 8307, § 6a provides:
(a) If compensation can be claimed under this law by the injured employee or his legal beneficiaries, then the Association shall be subrogated to the rights of the injured employee, and may enforce in the name of the injured employee or his legal beneficiaries the liability of said other person, and in case the recovery is for a sum greater than that paid or assumed by the association to the em-ployee or his legal beneficiaries, then out of the sum so recovered the association shall reimburse itself and pay said costs and the excess so recovered shall be paid to the injured employee or his beneficiaries.
(c) If at the conclusion of a third-party action a workmen's compensation beneficiary is entitled to compensation, the net amount recovered by such benefi-ciary from the third-party action shall be applied to reimburse the association for past benefits and medical expenses paid and any amount in excess of past benefits and medical expenses shall be treated as an advance against future bene-fit payments of compensation to which the beneficiary is entitled to receive under the Act.
Id.
83. 745 S.W.2d at 901.
84. Id.
85. Id. at 903. 86. Id. at 902. 87. Id. at 903.
88. Id.; see also Moseley v. State Dep't of Highways & Pub. Transp., 748 S.W.2d 226, 227
(Tex. 1988) (holding that a self-insured entity such as the Texas Department of Highways and Public Transportation may not recover prejudgment interest of their subrogation claim of workers' compensation benefits).
89. 696 S.W.2d 549 (Tex. 1985). Cavnar drastically changed damages in tort cases by
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employee may recover prejudgment interest on medical expenses in a work-ers' compensation case remained unanswered. In Standard Fire Insurance
Co. v. Morgan 90 the supreme court held as a matter of law that an employee in a workers' compensation case cannot recover prejudgment interest on past medical expenses. The high state court distinguished the holding in Cavnar on the basis that Cavnar dealt with damages under the Wrongful Death Act and not damages under the Workers' Compensation Act.91
Additionally, the supreme court recognized that the Workers' Compensa-tion Act allows for recovery of prejudgment interest on past due weekly in-stallments.9 2 Past medical expenses, however, do not constitute past due weekly installments within the meaning of the Compensation Act.93 Three justices argued that an injured employee should be allowed to recover pre-judgment interest on past medical expenses in order to make the claimant whole.94 Since the Workers' Compensation Act should be liberally con-strued in favor of the injured employee, and the Act remains silent as to the recovery of prejudgment interest on unpaid medical expenses, the dissenters argued that the court should interpret the Act's silence favorably for the employee and allow prejudgment interest.95
D. Period of Incapacity
In order to recover workers' compensation benefits, an injured employee must be incapacitated for at least a period of one week.96 In Garcia v.
Insur-The Texas Supreme Court justified its allowance of prejudgment interest in personal injury actions by noting that the award of prejudgment interest helps to make the plaintiff whole. Id. at 552. Prejudgment interest further compensates personal injury claimants for the lost oppor-tunity of investment proceeds that they could have earned on interest on the damages between the time of the occurrence and the time of the judgment. Id.
90. 745 S.W.2d 310 (Tex. 1987).
91. Id. at 313. The court reasoned that the legislature, by enacting an exact compensation scheme within the Workers' Compensation Act, distinguished this fact scenario from an action under the Wrongful Death Act as discussed in Cavnar. Id.; see also General Elec. Co. v. Kunze, 747 S.W.2d 826, 832-33 (Tex. App.-Waco 1987, writ denied) (holding that an em-ployee could not recover prejudgment interest on his damages for lost past wages and lost past employment benefits, because his economic expert compounded interest on damages that were argued to the jury).
92. 745 S.W.2d at 313. 93. Id.
94. Id. at 313-14. Justices Robertson, Ray, and Mauzy concurred, and dissented from the majority opinion. Id. at 313.
95. Id. at 314. The Texas Supreme Court has recognized that courts should construe the Workers' Compensation Act liberally in favor of the employee. Navarette v. Temple Indep. School Dist., 706 S.W.2d 308, 309 (Tex. 1986).
96. TEX. REV. CIV. STAT. ANN. art. 8306, § 6 (Vernon 1967). Article 8306, § 6, states: No compensation shall be paid under this law for an injury which does not incapacitate the employee for a period of at least one week from earning full wages, but if incapacity extends beyond one week compensation shall begin to accrue on the eighth day after the injury. The medical aid, hospital services, chiropractic services and medicines, as provided for in Section 7 hereof, shall be supplied as and when needed, and according to the terms and provisions of said Section 7. If incapacity does not follow at once after the infliction of the injury or within eight days thereof but does result subsequently, compensation shall begin to accrue with the eighth day after the date incapacity commenced. In any event the employee shall be entitled to the medical aid, hospital service,
ance Co. 97 the Texas Supreme Court addressed the question of what consti-tutes incapacity for a period of one week. On December 14, 1984, Mrs. Garcia fell at work and injured herself.98 She went to the infirmary and returned to her duties without receiving medication or treatment.99 Mrs. Garcia did not report for work on December 15 and 16, but returned to work on December 17.100 Thereafter, Mrs. Garcia left work on December
19 and went to a hospital emergency room because she was experiencing pain.0 1 The following day she returned to work.1 02
Later, Mrs. Garcia went on vacation from December 22 to January 14 and after a short return to work, she left work on January 17 to visit a doctor.03 On January 23 she began missing work due to her previous injury. Because she failed to report to work on January 24, 25, and 28 without notifying her employer, Mrs. Garcia's employer terminated her employment on February 1.104
In Garcia the jury determined that Mrs. Garcia became permanently and partially incapacitated beginning January 23, 1985.105 The court of appeals reversed and rendered judgment for the carrier because Mrs. Garcia testified on cross examination that her injuries neither caused her to miss work for as long as a week, nor incapacitated her from earning full wages for a week. 106
The supreme court reversed the court of appeals' decision, reasoning that some evidence existed that Mrs. Garcia's injuries kept her from earning full wages from December 22 to January 14, her vacation period, and for some time period after her termination.107 The supreme court found that Mrs. Garcia's testimony did not constitute a judicial admission and that the court of appeals used the wrong standard in evaluating the testimony. The supreme court held that the court of appeals should have considered only the evidence tending to support the jury finding of permanent and partial incapacity and should have disregarded all evidence to the contrary.0 8
chiropractic service, and medicines provided in this law. Provided further, that if such incapacity continues for four (4) weeks or longer, compensation shall be computed from the inception date of such incapacity.
Id.
97. 751 S.W.2d 857, 858 (Tex. 1988).
98. Id. at 857.
99. Id. 100. Id. 101. Id. 102. Id. 103. Id. 104. Id.'
105. Id.. at 858.
106. Id. Mrs. Garcia testified on cross-examination:
(Question) Following your fall, December 14, 1984, Mrs. Garcia, you were
never off for as long as a week because of that injury, were you? (Answer) Well, no.
(Question) Okay. And you were not incapacitated for a week from earning full wages, were you?
(Answer) Well, no.
Id.
107. Id.
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E. Representative of Insurer
Since the last survey, the Fort Worth court of appeals addressed the ques-tion of whether an employee of the subscriber can act as a representative of the insurance carrier for trial purposes. In McKinney v. National Union Fire Insurance Co. 109 the plaintiff invoked the "rule" under rule 267 of the Texas Rules of Civil Procedure.110 During the trial, a safety administrator of the claimant's employer remained in the courtroom and later testified as the rep-resentative of the insurance company.I1 I The claimant objected, stating that because the safety administrator did not work as an employee of the insur-ance carrier, he could not act as its representative under rule 267. Because the safety administrator heard other witnesses' testimony after the invoca-tion of the rule, the claimant further argued that the court should not allow the safety administrator to testify.112
In analyzing rule 267, the trial court ruled that the safety administrator could act as a representative of the insurance carrier, even though the insur-ance carrier did not employ him.1 13 The appellate court affirmed the trial court's decision, noting that employment does not constitute a prerequisite to being a representative of the insurer under rule 267.114
F Subrogation-Attorneys' Fees
The trial court possesses wide discretion in the apportionment of attor-neys' fees in workers' compensation subrogation cases.' 15 In Twin City Fire Insurance Co. v. Meave1
16 the employee's wrongful death beneficiaries brought a third-party action, which settled during the trial." 7 The compen-sation carrier intervened in the suit for reimbursement of death benefits it paid on behalf of the deceased, and for any future payments due to the
fain-must disregard all evidence and inferences to the contrary. Id., (citing Aim v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986)).
109. 747 S.W.2d 907 (Tex. App.-Fort Worth 1988, writ granted). 110. TEX. R. Civ. P. 267. Rule 267 stated, at the time of trial:
Neither party to the suit shall be placed under the rule. Where a corporation is a party to the suit, the court may exempt from the rule an officer or other repre-sentative of such corporation to aid counsel in the presentation of the case. If any party be absent the court in its discretion may exempt from the rule a repre-sentative of such party.
Id.
111. 747 S.W.2d at 910.
112. Id.
113. Id.; see also Yates v. Pacific Indem. Co., 193 S.W.2d 266, 267 (Tex. Civ.
App.-Texarkana 1946, writ ref'd n.r.e.) (allowing the employee of an employer to be the representa-tive for a workers' compensation carrier in a compensation case). The appellate court's inter-pretation makes practical sense because, while the Workers' Compensation Act makes the plaintiff sue the compensation carrier, in essence employees of the employer will have more knowledge about the nature of the injury, especially a safety administrator in an alleged toxic chemical case.
114. 747 S.W.2d at 910.
115. See Hartford Ins. Co. v. Branton & Mendelsohn, Inc., 670 S.W.2d 699, 703-04 (Tex. App.-San Antonio 1984, no writ).
116. 743 S.W.2d 765 (Tex. App.-Houston [1st Dist.] 1988, no writ). 117. Id.
ily of the deceased.'1 8 After the settlement, the trial court apportioned at-torneys' fees between the plaintiff's attorney and the carrier's attorney from the amount awarded to the insurance carrier for its subrogation interest. 19
The carrier appealed from the apportionment of attorneys' fees to the plaintiff's attorney, claiming that it did not benefit from his work.
Addition-ally, the carrier asserted that the plaintiff's attorney should have, but did
not, present a detailed account of hours expended in the prosecution of the plaintiff's case and an appropriate hourly rate.120 The court of appeals
re-jected these assertions, holding that the carrier obviously benefitted from the plaintiff's attorney's negotiating a settlement that satisfied the carrier's
sub-rogation claim.'2 1 Further, the court of appeals held that to recover
attor-neys' fees under the Act the claimant need only prove the nature and extent
of the attorney's services.122 Specifically, the court of appeals required no specific itemization of attorneys' fees.
G. Collateral Estoppel
In Medina v. El Paso Machine & Steel Works, Inc.'23 the court held that jury issues answered in a workers' compensation case collaterally estopped the employee from relitigating those issues in a third-party action.124 Me-dina involved a construction worker who, following an accident, filed a
workers' compensation claim and also filed a third-party action against other
defendants alleging tort damages.'25 The trial court severed the workers'
compensation case from the third-party action and tried the workers' com-pensation case first.' 26
118. Id.
119. Id. at 766. TEX. REV. CIV. STAT. ANN. art. 8307, § 6a(b) (Vernon Supp. 1989). Sec-tion 6a(b) provides for apporSec-tionment of attorneys' fees in workers' compensaSec-tion subrogaSec-tion actions. Section 6a(b) states:
[i]f the Association obtains an attorney to actively represent its interest and if the attorney actively participates in obtaining a recovery, the court shall award and apportion an attorneys' fee allowable out of the association's subrogation recovery between such attorneys taking into account the benefit accruing to the association as a result of each attorney's service, the aggregate of such fees not to exceed thirty-three and one-third percent (331/3%) of the subrogated interest.
Id.
120. 743 S.W.2d at 766. The apportionment of attorneys' fees lies within the sound discre-tion of the trial court. Hartford Ins. Co., 670 S.W.2d at 703-04. The court of appeals deter-mines whether the trial court abused its discretion by looking at the facts of each case individually. University of Texas v. Melchor, 696 S.W.2d 406, 407-08 (Tex. App.-Houston
[14th Dist.] 1985, no writ).
121. 743 S.W.2d at 766-67. The plaintiff's attorney described his work on the case, and the appellate court noted the extensiveness of the attorney's work. Id.
122. Id. at 766. The appellate court determined that the attorney did not need to submit either a detailed account of the hours he expended on the case or an hourly rate to justify the apportionment of attorneys' fees under the Workers' Compensation Act. Id.; see University of Texas v. Melchor, 696 S.W.2d 406, 408 (Tex. App.-Houston [14th Dist.] 1985, no writ); Hartford Ins. Co. v. Branton & Mendelsohn, Inc., 670 S.W.2d 699, 703-04 (Tex. App.-San Antonio 1984, no writ).
123. 740 S.W.2d 99 (Tex. App.-El Paso 1987, no writ). 124. Id. at 101.
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At the trial of the workers' compensation case the jury found that the claimant did not receive an injury and that the construction company did not employ the claimant. 127 The third-party defendants moved for summary judgment in their case, asserting that collateral estoppel barred the plaintiff
from alleging in the third-party action that he received any injuries from the accident. 128 Based on the jury finding in the workers' compensation case,
the trial court entered summary judgment in favor of the third-party defend-ants and held that the previously answered jury issues estopped the claimant from asserting a claim for injuries received in the accident.'2 9
The court of appeals affirmed the summary judgment, noting that the claimant did not bring forth on appeal any claims of error about a, lack of fairness or a heavier burden or a denial of due process.' 30 Taking judicial
notice that a jury is more apt to render a verdict against a defendant whom it knows has insurance, as compared to a third-party action when neither party can introduce evidence of insurance, the appellate court affirmed the use of collateral estoppel in this situation.'3' The court of appeals reasoned that if the employee could not obtain an affirmative injury finding in the compensa-tion case, he should not be able to relitigate his injury allegacompensa-tions in the third-party case.13 2
H. Diversity Jurisdiction
For years federal courts usually have refused to exercise jurisdiction over workers' compensation cases. The Fifth Circuit in Hernandez v. Travelers
Insurance Co. 133 and Campbell v. Insurance Co. of North America 134 applied 28 U.S.C. section 1332(c)135 and dismissed the compensation claims for lack of jurisdiction. Section 1332(c) provides:
That in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.'36
127. Id.
128. Id.
129. Id.
130. Id. The appellate court limits its review to only those issues expressly presented and raised at the trial court. An appellate court cannot consider other grounds as reversible error on appeal. See Fantastic Homes, Inc. v. Combs, 596 S.W.2d 502 (Tex. 1979); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979).
131. 740 S.W.2d at 101. The court noted that courts usually take judicial notice of the fact
that juries are more likely to render judgments against defendants whom they know have insurance. Id. See Kirby Petroleum Co. v. Jones, 383 S.W.2d 610, 613-14 (Tex. Civ. App.-Tyler 1964, writ ref'd n.r.e.).
132. Id.
133. 489 F.2d 721 (5th Cir.), cert. denied, 419 U.S. 844 (1974).
134. 552 F.2d 604 (5th Cir. 1977) (per curiam). 135. 28 U.S.C. § 1332(c) (1982).
136. Id. The legislature amended this statute in 1964 in response to direct action statutes
adopted in Louisiana and Wisconsin. S. REP. No. 1308, 88th Cong., 2nd Sess., reprinted in
1964, U.S. CODE CONG. & ADMIN. NEws 2778, 2779.
The Hernandez court analyzed the situation where the claimant filed an appeal from the award of the IAB.137 In Hernandez the Fifth Circuit held that a suit filed against an insurer under a workers' compensation statute represented a "direct action" within the meaning of section 1332(c).13 8 Fur-ther, the appellate court held that workers' compensation insurance consti-tuted an insurance policy or contract within the meaning of the same section. 139
The Fifth Circuit distinguished Hernandez from a later case concerning an appeal by the workers' compensation carrier of a workers' compensation award by the IAB. 140 In Campbell, the carrier, instead of the claimant, filed suit to set aside the IAB award. Despite this distinction from Hernandez, the Campbell court reasoned that the same policy considerations of
Her-nandez applied to the facts in Campbell. The Campbell court reasoned that
because the burden of proof lies on the claimant in a workers' compensation de novo proceeding, and the parties would be formally realigned, the reason-ing in the Hernandez court still held sway.14 1 Thus, the Campbell court dismissed the cause for lack of jurisdiction.142
The Sixth Circuit, in Aetna Casualty & Surety Insurance Co. v. Greene,'43 rejected the holding of the Campbell case.14 Thus in Northbrook National
Insurance Co. v. Brewer 14 5 the Fifth Circuit decided to reexamine its hold-ings in the Hernandez and Campbell cases. The plaintiff urged that a work-ers' compensation case does not constitute a direct action in that the plaintiff does not bring a suit directly against an insurer when he could have placed liability upon the insured. 146 Also, the carrier, relying upon the Aetna opin-ion, argued that the Campbell court erred in applying section 1332(c) to an action brought by rather than against an insurer. 147 Finally, the carrier con-tended that the workers' compensation policy at issue did not amount to a "6policy or contract of liability insurance" within the meaning of section 1332.148 The three-judge panel deciding the Brewer case held that without an en banc hearing it remained bound by the opinions in Hernandez and
Campbell and, therefore, it affirmed the district court's decision to dismiss
137. 489 F.2d at 724.
138. Id. at 722-23. A direct action statute allows an injured party to bring a cause of action directly against the insurance carrier as compared to suing the insured. See Northbrook Nat'l Ins. Co. v. Brewer, 854 F.2d 742, 743 (5th Cir. 1988).
139. 489 F.2d at 722; see Brewer, 854 F.2d at 744. 140. 552 F.2d at 604.
141. Id. at 605; see Brewer, 854 F.2d at 744-45. The Brewer court noted that Campbell remains a controversial case in the Fifth Circuit. Id. at 745; see also Dairyland Ins. Co. v. Makover, 654 F.2d 1120, 1125-26 (5th Cir. 1981) (holding that an insurance company could bring a declaratory judgment action in federal court to determine whether its policy covered a particular automobile accident). In this case, the majority determined that section 1332(c) did not apply, thus giving the district court subject matter jurisdiction. Id. at 1125.
142. 552 F.2d at 605.
143. 606 F.2d 123 (6th Cir. 1979). 144. Id. at 127.
145. 854 F.2d 742 (5th Cir. 1988), appeal pending. 146. Id. at 744-45.
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the case for lack of subject matter jurisdiction.149
. Punitive Damages
Injured employees generally may not recover punitive damages from their employers in workers' compensation cases. The estate of a deceased em-ployee, however, may recover punitive damages from the employer when the employer's willful acts or omissions result in the death of the employee.150 In Otis Elevator Co. v. Joseph 151 the court addressed the issue of whether the employee's own negligence should be compared to the gross negligence of
the employer with a resultant reduction in damages.
In Joseph the trial court submitted an issue inquiring of and comparing the employer's gross negligence to the employee's ordinary negligence. The jury found that the employee's negligence amounted to sixty-five percent of the cause of his death and that the employer's gross negligence constituted
thirty-five percent of the cause of the employee's death.152 Thereafter, the
trial court disregarded the jury findings and awarded all of the exemplary damages to the employee's estate.153 The court of appeals upheld the trial court's judgment and noted that the trial court should not have submitted issues comparing the ordinary negligence of the employee and the gross neg-ligence of the employer to the jury. 15 4 The appellate court reasoned that the different theories underlying ordinary negligence and gross negligence and their different elements of proof make the two theories incompatible.155 Further, although article 33.001 of the Texas Civil Practice and Remedies Code'5 6 bars recovery of actual damages by a plaintiff whose negligence amounts to more than fifty percent in a negligence action, that section does
not apply to actions.157
149. Id. at 745. The court's opinion gives a tone that they would like to reconsider Camp-bell, and predicts that Campbell possibly could be overturned. Id.
150. TEX. REV. CIv. STAT. ANN. art. 8306 § 3a (Vernon 1967). Under this section, an
employee waives his common law rights if he does not give a written notice to his employer that he does not wish to waive these rights. However, the employee does not waive his consti-tutional rights, which allow his estate to recover damages for his wrongful death if the gross negligence of the employer causes the employee's death. See Wright v. Gifford-Hill & Co., 725
S.W.2d 712, 714 (Tex. 1987).
151. 749 S.W.2d 920 (Tex. App.-Houston [1st Dist.] 1988, no writ). But see Wright v.
Gifford-Hill & Co., 736 S.W.2d 828, 833 (Tex. App.-Waco 1987, writ ref'd n.r.e.); Jannette v. Deprez, 701 S.W.2d 56, 59 (Tex. App.-Dallas 1985, writ ref'd n.r.e.); Pedernales Elec. Coop., Inc. v. Schultz, 583 S.W.2d 882, 885 (Tex. Civ. App.-Waco 1979, writ ref'd n.r.e.).
152. 749 S.W.2d at 922-23. 153. Id.
154. Id.; see 725 S.W.2d 712 (Tex. 1987); Anderson v. Trent, 685 S.W.2d 712, 714 (Tex. App.-Dallas 1984, writ ref'd n.r.e.); Turner v. Lone Star Indus., Inc., 733 S.W.2d 242, 244 (Tex. App.-Houston (1st Dist.] 1987, writ ref'd n.r.e.). But see Wright v. Gifford-Hill & Co.,
736 S.W.2d 828, 833 (Tex. App.-Waco 1987, writ ref'd n.r.e.); Jannette v. Deprez, 701 S.W.2d 56, 59 (Tex. App.-Dallas 1985, writ ref'd n.r.e.); Pedernales Elec. Coop., Inc. v.
Schultz, 583 S.W.2d 882, 885 (Tex. Civ. App.-Waco 1979, writ ref'd n.r.e.).
155. 749 S.W.2d at 922. The court noted that punitive damages exist to punish the defend-ant and not compensate the plaintiff.
156. TEX. Civ. PRAC. & REM. CODE ANN. § 33.001 (Vernon Supp. 1989). 157. 749 S.W.2d at 922.
J. Wrongful Discharge
The Workers' Compensation Act prohibits employers from discharging or discriminating against employees for the following reasons: (1) the employee in good faith filed a workers' compensation claim; or (2) the employee hired a lawyer to represent him in a claim; or (3) the employee instituted, or caused to be instituted, in good faith, any proceeding under the Workers' Compensation Act; or (4) the employee testified or is about to testify in any
compensation proceeding.158
In General Electric Co. v. Kunze 159 an employee alleged that the company wrongfully discharged him because he pursued a claim.16° In Kunze the employee had worked for his employer for nineteen years before he injured himself on the job. 161 He worked in his employer's Houston office for seven-teen years, transferred to the Baton Rouge office for one year, and then transferred to the Waco office where he sustained a job-related injury.162 After the compensation carrier refused to pay his medical bills, he returned to work and told his boss that he intended to retain an attorney to handle his workers' compensation claim.163 His boss became very upset and told him that he could not hire an attorney to prosecute his compensation claim.164 Later his boss gave him several derogatory evaluations, and thereafter fired him based on his alleged poor job performance at the Waco office.165
At trial the employee produced evidence to demonstrate that his firing resulted from his prosecution of his workers' compensation claim and not because of his job performance at the Waco office. Although the employer originally explained that it had fired the employee because of his perform-ance in the Waco office, the employer attempted to introduce into evidence documents that portrayed that the employee had an unsatisfactory work rec-ord in the Houston office as well. 166 The employer argued that the evidence of job performance at the Houston office refuted the employee's inference
158. TEX. REV. CIV. STAT. ANN. art. 8307c (Vernon Supp. 1989). Article 8307c provides: Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen's Compensation Act, or has testified or is about to testify in any such proceeding.
Section 2. A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the viola-tion, and an employee discharged in violation of the Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.
Id.
159. 747 S.W.2d 826 (Tex. App.-Waco 1987, writ denied). 160. Id. at 828.
161. Id.
162. Id. Approximately three days after working in the Waco office, the employee injured his back. Id.
163. Id.
164. See id. The employee's boss testified that she did not tell the employee that he could not hire an attorney, and that she did not become upset with him when he told her that he planned to hire an attorney. Id.
165. Id.
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that he was a good employee for nineteen years at both the Houston and Waco offices. The trial court refused to admit this evidence.1 6 7 On appeal, the employer asserted that the evidence should have been admitted because (1) it rebutted an inference created by the employee that he was a satisfac-tory employee during his nineteen-year tenure; (2) it related to the em-ployee's allegations of lost future wages and benefits; and (3) it corroborated the employer's evidence that the company fired the employee because of his poor work performance.' 68
The appellate court affirmed the trial court's decision to exclude this evi-dence, holding that the employee's implied inference that he was a good employee for nineteen years did not justify the introduction of rebuttal evi-dence.169 Further, the court of appeals held that the employee's work record in the Houston or Baton Rouge offices did not tend to prove or disprove the issue of why the company fired him from the Waco office, because the em-ployer only asserted that the employee's job performance in Waco necessi-tated the employment termination.170 The appellate court, however, did not rule on whether the employer could admit the past work record as evidence on the issue of the employee's lost future wages and benefits, because the employer did not offer it for this purpose at trial.'7'
Article 8307c allows employees wrongfully discharged to recover reason-able damages and allows the employee to be reinstated to his former posi-tion.'72 Since the jury had awarded the employee lost future wages for the wrongful discharge, the employer argued that an employee must seek rein-statement as a precondition to recover any future lost wages under article 8307c.173 The court of appeals rejected the employer's argument, holding that reinstatement is not a precondition to recovering lost future wages. Ad-ditionally, the appellate court noted that, because the employer willfully and maliciously discharged the employee in violation of the statute, reinstate-ment in this case would be impracticable. 74
K. Reservation of Common Law Rights
The legislature designed the Workers' Compensation Act to provide an employee with speedy and ascertainable compensation for on-the-job injuries regardless of his employer's liability. In exchange for these guarantees, the employee gives up his common law rights to sue his employer for negligence, unless the employee reserves these rights by giving proper written notice to
employee because of his poor work performance at the Waco Division, and not because of his job performance in the Baton Rouge Division. Id.
167. Id. 168. Id.
169. Id.
170. Id.
171. Id. see TEX. R. Civ. EvID. 105(b) (an appellate court cannot consider the trial court's alleged error for not admitting evidence based on grounds that were not submitted to the trial court).
172. TEX. REV. CIv. STAT. ANN. art. 8307c (Vernon Supp. 1989). 173. 747 S.W.2d at 830-31.
174. Id. at 831.
his employer.175 Failure to give written notice to an employer constitutes a waiver of the employee's common law rights.17 6 These duties and rights
under the Workers' Compensation Act apply to all employees, regardless of
their age. 177
In Whitehead v. American Industrial Transportation, Inc. 178 the mother of a minor employee who died in a job-related accident sued the employer under the Wrongful Death Statute.179 In trying to circumvent the exclusiv-ity of the Workers' Compensation Act, the Whitehead plaintiff advanced two arguments. First, she argued that minor employees do not have to give writ-ten notice to their employers in order to reserve their common law rights. Second, the plaintiff asserted that, if the written notice provision applies to minors, it is unconstitutional because it denies minors due process of law and access to the courts as guaranteed by the United States and Texas
Constitutions. 8 0
Both the trial court and the court of appeals held that the written notice provision does apply to minors and that the employee's estate did not have a cause of action outside of the Workers' Compensation Act. 181 The appellate court noted that the legislature clearly intended for the Workers' Compensa-tion Act to apply to minors because several secCompensa-tions of the Act refer to mi-nors.'82 While the appellate tribunal realized that sometimes the legislature exempts minors from strict requirements of the law, the court emphasized that the legislature, not state or federal constitutions, mandates these exemptions.
In addressing the plaintiff's second argument that the waiver provision violates the minor employee's due process rights and violated the Texas open courts provision, the court held that the plaintiff had not shown the opera-tion of these constituopera-tional provisions harmed the minor employee.'8 3 Ap-parently, the summary judgment evidence merely showed that the deceased was a minor, and did not demonstrate that the waiver provision denied the
175. TEX. REV. CIV. STAT. ANN. art. 8306, § 3a (Vernon 1967).
176. Id.; see Whitehead v. American Indus. Transp., Inc., 746 S.W.2d 273, 274 (Tex. Civ. App.-Texarkana 1988, writ denied); TEX. REV. CIv. STAT. ANN. art. 8306, § 3a (Vernon 1967) provides:
An employee of a subscriber shall be held to have waived his right of action at common law or under any statute of this State to recover damages for injuries sustained in the course of his employment if he shall not have given his em-ployer, at the time of his contract of hire, notice in writing that he claimed said right or if the contract of hire was made before the employer became a
sub-scriber, if the employee shall not have given the said notice within five days notice of such subscription.
Id.
177. See Whitehead, 746 S.W.2d at 274-75.
178. 746 S.W.2d 273 (Tex. Civ. App.-Texarkana 1988, writ denied).
179. Id.; TEX. Civ. PRAC. & REM. CODE ANN. §§ 71.001-.011, (Vernon 1986).
180. 746 S.W.2d at 274; U.S. CONST. amend. XIV; TEX. CONST. art. I, § 13. 181. 746 S.W.2d at 274-75.
182. Id. at 274.
